Opinion
A153817
09-30-2019
SAI R., Plaintiff and Appellant, v. VALERIE R., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. FL090159)
In this child custody dispute between Sai R. (father) and Valerie R. (mother), father appeals from a protective order entered under the Domestic Violence Protection Act (DVPA) prohibiting him from having any contact with mother, with mother's current husband, and with Layla, the eleven-year-old daughter of mother and father, for a period of three years. We reverse.
See Family Code section 6200 et seq. All further statutory references are to the Family Code unless otherwise indicated.
I. BACKGROUND
From December 2013 to January 2018, mother and father had a shared custody arrangement over Layla. Going back further, before 2013, father had sole custody of Layla from August 2010, when she was not quite two years old, when he claims mother abandoned her and moved to the state of Washington. Mother returned to California in January 2012 with her current husband and successfully applied for visitation in 2012, and then for joint custody in 2013. Among the terms in the joint custody order was a condition providing that "[n]either parent shall discuss the court proceedings with the child."
The record generally reveals a history of lack of cooperation in the joint custody arrangement, failed mediation attempts to resolve disputes in connection with it, and efforts by each parent to secure sole custody. At various points, both parties made accusations against each other of past abuse of Layla, and there were referrals of these accusations to the county child welfare services agency, but none of the abuse accusations, on either side, was substantiated.
From the mediation reports in the record, each parent has long believed the other is attempting to control and manipulate shared parental decisionmaking for Layla and is interfering with the joint custody rights of the other. What appears to have precipitated the events that led to entry of the DVPA order at issue here was a tense and unsuccessful transfer of custody from father to mother on January 21, 2018. During the incident, the police were called to facilitate the custody exchange, but they were unable to help. Layla remained in father's car and refused to get into mother's car, so the parents decided the exchange would take place the following day when mother would pick Layla up after school.
By a request for order filed January 24, 2018 (January 24 RFO), mother sought sole custody on the ground that father was failing to abide by court orders and generally being uncooperative, to Layla's detriment. The noticed date for the hearing was February 15, 2018. Mother sought and was granted a temporary emergency order. While the January 24 RFO was pending, another dispute arose between mother and father. The agreed exchange of custody did not take place on January 22 because father failed to return Layla to school after the aborted custody transfer. In a request for a temporary emergency order on shortened time (Temporary Emergency RFO) filed January 30, 2018, mother alleged that father had kept Layla out of school for seven school days following the custody exchange dispute and was continuing to hold her out of school. Mother sought to have father ordered to deliver Layla to court, with a noticed date for hearing of February 1, 2018. There was no indication in the Temporary Emergency RFO that it was anything other than an effort to have Layla produced in court so that a change of custody could be effectuated and Layla could return to school. Mother did not request a restraining order or a change in custody arrangements.
In support of the January 24 RFO, which was prepared on Judicial Council Form FL-300, mother alleged that father "has not cooperated with the latest court orders. He continues to discuss the case in detail with the minor, who is 9 years old. He does not facilitate exchanges. He is disruptive during exchanges, visits to the physician's office, and indeed in the courtroom itself. His outrageous behavior continues to harm Layla. In the latest incident on January 21, 2018, he failed to facilitate the exchange. After an hour and a half at the exchange site with all parties present and a police officer trying to help, it was agreed that the exchange would instead take place after school the following day. [Father] did not take Layla to school, and avoided attempts to contact him through the court-ordered [electronic messaging system]."
In the Temporary Emergency RFO, which was filed on Judicial Council Form FL-305, none of the boxes indicating that child custody or visitation would be in issue at the requested hearing were checked.
At the February 1 hearing, the court went beyond the relief mother requested in the Temporary Emergency RFO and explored related issues that had been raised in the January 24 RFO. The court questioned father about whether he had, in fact, taken Layla out of school, and whether he had spoken to Layla about the custody proceedings. The court also heard argument from a lawyer who was appointed earlier in the proceedings to represent Layla's interests; Layla's counsel generally supported mother's view that father was manipulating his daughter in an effort to gain control in the shared custody arrangement and that "his mere presence around the child, I believe, is traumatizing."
In addition, the court spoke with Layla in chambers (presumably with her counsel present, although that is not clear from the record), outside the presence of father or mother. Struck by the fact that Layla used formal language referring to "the case" during this ex parte conference, the court returned to the bench and, based on the fact that such formal language is not characteristic of the way children Layla's age normally speak, indicated "she's clearly, for lack of a better term, being brainwashed by father." Admonishing father, the court remarked, "You violated orders. Took the minor out of school. You, basically, do what you want."
At the conclusion of the February 1 hearing, the court granted two forms of relief. First, the court issued a temporary restraining order (TRO) on Judicial Council Form DV-110 set to expire February 15, 2018. Included in the TRO was a personal conduct order directing father, inter alia, not to "[h]arass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, impersonate (on the Internet, electronically or otherwise), or block movements" of mother, her husband, or Layla, and a stay-away order directing father to stay at least 100 yards away from those individuals, as well as from mother's home, place of employment, vehicle, and the children's schools.
The conduct restrained omitted any exception for "peaceful contact with children . . . , as required for court-ordered visitation," which is a standard exception to the stay-away order appearing in the check-off boxes on Form DV-110.
Second, the court issued an order addressing custody and visitation. The findings and order after hearing (Findings and Order) prepared by mother's counsel to memorialize what occurred at the February 1 hearing awarded mother custody of Layla and allowed father no visitation, subject to a narrow exception providing that "[t]he minor shall have one 5-10 minute telephone conversation per week" with father and "the calls shall be placed on speaker and may be monitored by a third party." Presumably in recognition that none of the relief granted on February 1 was actually requested in the Temporary Emergency RFO, the Findings and Order indicated that "[t]his matter is continued for further hearing on 2/15/18 at 8:30 a.m.," which suggests that it too, like the TRO, was issued as a form of interim relief.
On February 7, in an effort to serve a subpoena on mother's current husband requiring his appearance at the February 15 hearing, father accompanied a process server to mother's home. According to father, on that visit to mother's home he happened to see Layla outside the house, she approached him, and they talked. Based on this incident, mother accused father of violating the court's February 1 order. Claiming that father's conduct on February 7 not only violated the TRO but traumatized Layla, the next day she filed an OSC re contempt and applied for a DVPA protective order (DVPA Application).
In the DVPA Application, filed on Judicial Council Form DV-100, mother alleged that father "came to my home, found Layla in the yard, and pulled her out of my view. She refused to come to me when I called, and once she did come back into the home she locked herself in the bathroom and refused to come out. She had been doing very well without her father's constant emotional abuse, and we are no[w] back at square one." Mother further alleged that "Layla and I require protection from severe emotional abuse perpetrate[d] by Sai [R.] My husband . . . needs protection because Mr. [R.] was at my home asking where my husband could be found. . . . [W]e are all frightened because of the ongoing custody dispute and Mr. [R.'s] inability to follow court orders or behave predictably and rationally." The DVPA Application made no request for a ruling on child custody or visitation matters.
At the February 15 hearing, the court granted mother's DVPA Application, effectively extending the February 1 TRO to three years and making it more prohibitive, barring all contact by father with Layla, and thereby nullifying the limited phone contact clause in the Findings and Order issued after the February 1 hearing. The court explained it was trying to "put some space in between" father and his daughter, which it had tried to do in its orders issued February 1, without success.
The court declined to rule on the January 24 RFO, even though it had been noticed for hearing on February 15. Instead, the court dismissed that request for relief, indicating the issue of custody had already been "dealt with" at the February 1 hearing. And because mother withdrew her application for a contempt citation during the February 15 hearing once her application for a DVPA protective order was granted, the court did not rule upon the contempt matter either.
Father now appeals the court's February 15, 2018 order.
II. DISCUSSION
"Abuse" under the DVPA includes, among other things, placing a person in "reasonable apprehension of imminent serious bodily injury" or any behavior that could be enjoined under section 6320, such as "attacking" or "harassing" conduct, or "disturbing the peace of the other party." (§§ 6203, subd. (a)(3), (4), 6320, subd. (a).) There is no evidence here of domestic violence by father against mother, no evidence of physical abuse by father against the child, and no evidence of physically threatening conduct by father against mother's current husband, or against anyone else. At most, the record shows conduct short of threatened physical abuse that may amount to badgering. (See S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1265-1266) [conduct that does not put someone in reasonable apprehension of serious bodily harm is not abuse sufficient to justify DVPA order].)
Even taking the broader, widely accepted view that under the "disturbing the peace" prong of section 6320, destroying the mental or emotional calm of the other party may be enjoined by DVPA protective order, we are unconvinced that father's visit to mother's home on February 7 and his general pattern of manipulative behavior warranted the injunction that was entered here. With respect to Layla in particular, who is included as an "Additional Protected Person" in the DVPA protective order, but who, according to the DVPA Application, was the primary target of father's alleged trauma-inducing conduct, it was inappropriate to use the DVPA as a substitute for the careful weighing of the child's best interest that should have been conducted in addressing issues of custody and visitation. (Cf. Quintana v. Guijosa (2003) 107 Cal.App.4th 1077, 1079 [trial court abused its discretion by deciding entitlement to restraining order based on facts entirely irrelevant to the DVPA].)
See In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1498 ("accessing, reading and publicly disclosing [ex-wife's] confidential e-mails"); Altafulla v. Ervin (2015) 238 Cal.App.4th 571, 575-576, 579-580 (emailing a surveillance report about his girlfriend's affair to mutual friends, relatives, her employer and co-workers, and discussing with her children sexually explicit details of her affair); In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1419, 1424-1425 (disclosure and threatened disclosure to third parties of confidential text messages that were embarrassing to respondent); Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1142-1143, 1145-1147 (stalking behavior by respondent's spurned ex-boyfriend who sought to resume romantic relationship).
There is a statutory policy in favor of children having "frequent and continuing contact" with divorced or separated parents except where the contact would not be in the "best interests of the child" under section 3011. (§ 3020, subd. (b)). That determination is necessarily guided by paramount concern for the child's "health, safety, and welfare" (§ 3020, subds. (a), (c)), and as a result, in some circumstances, a history of physical abuse can render a parent presumptively ineligible for custody. Even there, however, the presumption is rebuttable in most cases. Unconditional orders blocking custody or visitation are rare, and even a parent subject to an order that stringent may avoid it upon carrying the burden of proving the absence of "significant risk to the child." (§ 3030, subd. (a).) Only for parents convicted of the most violent crimes is "significant risk to the child" conclusively presumed. There is no evidence in this case that father had a criminal record warranting any of these restrictions.
Hogoboom & King, California Practice Guide: Family Law (The Rutter Group 2019) paragraph 7:310.2, page 7-130.
Id., paragraph 7:310.7a, page 7-132.
Ibid.
Id., paragraph 7:317, pages 7-134-7-135 (registered sex offenders where the victim was a minor).
Id., paragraphs 7:317.1-7:317.2, page 7-135 (rape of minor's mother, first degree murder of minor's other parent).
At the hearing on February 15, the court informed father that it did not intend to keep the no-contact order in place for the full term of three years; that keeping the order in place for its full three-year term would not be in the child's best interests; and that the father could expect, at some future date, a relaxation of the restrictions placed upon him. But the fact the court entered the protective order with the expressed intention of changing it—no doubt, as a device to change father's demonstrated course of behavior—does not cure the problem. If anything, in our view, that explanation confirms the court's awareness that a three-year unconditional bar on visitation went beyond what could have been ordered based on a best interest analysis.
To the extent the court decided the custody issue raised by mother's January 24 RFO by deciding that the issue had already been resolved on February 1, we must also agree with father that there was a due process violation here. The fundamental problem we see is that, until the February 1 hearing commenced, father had no notice that the issue of custody was going to be adjudicated that day rather than on February 15. Thus, when he arrived on the noticed date for hearing on the January 24 RFO—February 15—the ruling on mother's custody request was a fait accompli. Father indicated he wished to put on a case in opposition, but the court told him the "1/24 request for order is dropped," declined to entertain further evidence or argument on it, and announced "[t]his matter is over."
The proper standard of review in an appeal from the grant or denial of a protective order under the DVPA is abuse of discretion. (S.M. v. E.P., supra, 184 Cal.App.4th at p. 1264.) The standard of review for custody and visitation orders is similarly deferential. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255 [applying abuse of discretion review, and calling for affirmance if the order " 'is correct on any basis' "]; In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Whether we look at the February 15 order solely as a DVPA protective order, or, reading it together with the February 1 order, as a custody and visitation order—we conclude that its issuance was an abuse of discretion.
We recognize that father is a difficult pro se litigant. A prior judge in September 2017, ruling on the parents' earlier competing petitions for sole custody, found that father "is litigious and enjoys it. He reports the attorneys to the State Bar for claimed unethical behavior for doing their job and has subjected the child's attorney to a civil lawsuit. Appeals are filed.[] Other judges are described as arbitrary and capricious. Mom is a liar who should be prosecuted for perjury. He sees much to criticize in all participants with no awareness that his own behaviors are causative." Father would be wise to heed the warning that is implicit in these remarks. These are some of the hallmarks of a vexatious litigant, a designation that—where its statutory elements are found to apply—can justify restrictions on a litigant's continued access to the courts. (Code Civ. Proc., §§ 391, 391.7.) Nevertheless, without condoning in any way father's behavior as a litigant, we are constrained to reverse in this instance.
To date in this case alone, father has filed 10 other appeals or writ petitions seeking review of trial court orders, most of which he has abandoned, and none has met with any success. (Docket nos. A157558, A154857, A153758, A153349, A152545, A152517, A152054, A150460, A150294, A150248.)
III. DISPOSITION
The order entered February 15, 2018 is reversed. Upon remand, the court is directed to address and resolve the January 24 RFO on the merits. We express no view on the custody issue raised by the January 24 RFO. Nor do we express a view on any visitation rights father may seek, should the court resolve custody in mother's favor. The parties shall bear their own costs on appeal.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
TUCHER, J.